Re: Marshall & Upholding Federal Statutes

[Stephen M. Griffin]

I too have an article on the early practice of judicial review, "The Idea of Judicial Review in the Marshall Era," published in a very useful collection edited by Mark Graber, Marbury vs. Madison, Documents and Commentary (CQ Press, 2002).   I think I agree with Randy that the judicial power to void unconstitutional laws was established before Marbury.  I think Levy's work has really been superseded by more careful recent work by scholars like William Nelson, William Casto, William Treanor, Charles Hobson, Sylvia Snowiss, and Larry Kramer.  On the basis of their work, I argue that the issue of what conditions (such as the doubtful case rule)were attached to the institution of judicial review in the early republic has been overlooked.  So noticing the approval of judicial review by the founders does not end the debate.  I go on to argue that the conditions that were attached by the founding generation to the exercise of judicial review makes it very remote from the contemporary institution of judicial review.   Stephen M. Griffin Vice Dean of Academic Affairs Rutledge C. Clement, Jr. Professor in Constitutional Law Tulane Law School 6329 Freret Street New Orleans, LA 70118 (504) 865-5933 (voice) (504) 862-8856 (fax) [EMAIL PROTECTED] -----Original Message----- From: Randy Barnett [mailto:[EMAIL PROTECTED] Sent: Thursday, August 14, 2003 11:42 AM To: [EMAIL PROTECTED] Subject: Re: Marshall & Upholding Federal Statutes I have an article now pending at law reviews called, “The Original Meaning of the Judicial Power,” in which I respond to Leonard Levy and others who claim that judicial nullification of unconstitutional laws was not established at the time of the founding.  The evidence from the constitutional convention, ratification conventions (and some other authorities) shows that speakers—whether supporters or opponents of the Constitution--uniformly assumed that the judicial power included the power to nullify unconstitutional laws.  After reading these statements there is really no doubt that this power was included in the original meaning of the text of the Constitution.  I will post a link when it is up on SSRN.   Randy _____________________________________________ Randy E. Barnett Austin B. Fletcher Professor Boston University School of Law 765 Commonwealth Ave. Boston, MA  02215 617-353-3099 (phone) 617-353-3077 (fax) http://www.RandyBarnett.com http://www.LysanderSpooner.org (Lysander Spooner page) http://www.RandyBarnett.com/SOL.htm (Structure of Liberty  page)